STATE OF NEW JERSEY v. LURAY W. MAPLES

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5924-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LURAY W. MAPLES,

Defendant-Appellant.

_________________________________

October 20, 2010

 

Submitted October 12, 2010 - Decided

 

Before Judges Reisner and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 08-03-0331 and 05-09-1202.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

 

PER CURIAM

After the trial court denied his motion to suppress evidence, defendant Luray W. Maples pled guilty to conspiring to possess cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1). On February 27, 2009, the court sentenced him to eight years in prison. Defendant now appeals from the denial of his suppression motion. We affirm.

I

Based on a tip from a confidential informant, investigators from the Ocean County Prosecutor s Office began an extended surveillance of drug dealing activities conducted by defendant and his girlfriend, Angeliki Skaris. After the informant purchased drugs from defendant and Skaris several times, under law enforcement surveillance, the investigators applied for and obtained no-knock warrants for both defendant s house and Skaris townhouse. Because defendant s appeal is limited to the no-knock component of the warrants, we focus on the facts relevant to that claim.

In his affidavit in support of the warrant application, Investigator Anthony Sgro, Jr. set forth his general experience concerning the ease with which drug dealers can destroy evidence. He also relied on defendant s criminal record, including defendant s prior convictions for CDS offenses and resisting arrest, as well as offenses for which defendant had been arrested but not convicted. The affidavit clearly disclosed to the court which arrests had resulted in convictions and which had not.

Sgro also attested that defendant appeared to have free access to Skaris home. According to Sgro, he observed defendant drive up to Skaris residence "at which time [defendant] opened the garage door utilizing a remote and entered closing the garage door behind him." He also explained that the investigators did not know the layout of either suspect s home:

This affiant further requests the court to issue a "No-Knock" search warrant for the aforementioned residence because the layout and floor plan of the residence is unknown to Law Enforcement Officers [and] would allow the occupant additional time to destroy CDS. In addition, Luray Maples' prior arrests and convictions [] indicate to this affiant based on my training and experience that he may be more willing to destroy evidence and use force and resist law enforcement. More specifically, Luray Maples' []resisting arrest conviction, in addition to the CDS convictions[,] indicate[s] a willingness to use force to thwart apprehension by police. . . . More specifically, Luray Maples' two prior CDS felony convictions make him extended term eligible and would vastly increase his sentencing exposure. Therefore, based on this affiant's training and experience and the criminal record of Luray Maples lead this affiant to believe that there would be a risk of harm to those officers executing the warrant without the element of surprise afforded by a "No Knock" warrant.

 

Based on this information, Judge Villano issued the no-knock warrants.

Defendant s suppression motion was heard by Judge Den Uyl, who concluded that, under all the circumstances, the inclusion of a no-knock provision in the warrants was appropriate to prevent defendant from destroying evidence and to ensure the safety of the investigators. Judge Den Uyl stated in his oral opinion:

Giving the granting judge deference and analyzing the facts above, this information establishes reasonable suspicion or a minimal level of objective justification for police action because of Maples' past criminal history, the floor plan unknown to the officers, putting them at a disadvantage in a physical altercation and also that Maples may have been present in the residence when they searched that residence.

 

So, the affiant, in conclusion, established reasonable articulable suspicion that a no-knock entry was required to prevent the destruction of evidence and protect officer safety. The suspicion was articulated in the affidavit for the search warrant dated September 18, 2008, and the officer's assessment of the circumstances was admittedly based upon his own experience and knowledge. Therefore, the no-knock warrant will be upheld and the evidence will not be suppressed.

 

The judge also rejected defendant s application for a Franks1 hearing; defendant based that application on his claim that the police made false statements concerning defendant s having access to Skaris house through the garage. Before denying defendant s request for a Franks hearing, Judge Den Uyl listened to an audiotape of defendant s post-arrest statement to the police. In that statement, defendant admitted having access to Skaris home through the garage. According to the judge, defendant also admitted on the tape that he gained access by using a remote device. The judge therefore disregarded as incredible defendant s later certification in support of the suppression motion. In that certification, defendant attested that he had no access to Skaris garage, either through a remote device or by manually opening the door.

II

Under well-established Fourth Amendment principles, the police must knock and announce their presence before executing a warrant. State v. Johnson, 168 N.J. 608, 615-16 (2001).2 But, under limited circumstances, the police may obtain a no-knock warrant, to avoid destruction of evidence and to ensure the officers safety:

First, to justify a no-knock warrant provision, a police officer must have a reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence. Second, the police officer must articulate the reasons for that suspicion and may base those reasons on the totality of the circumstances with which he or she is faced. Third, although the officer's assessment of the circumstances may be based on his or her experience and knowledge, the officer must articulate a minimal level of objective justification to support the no-knock entry, meaning it may not be based on a mere hunch.

 

[Id. at 619.]

 

While the reasonable, particularized suspicion standard is "not high," the police must do more than assert in general that drugs may be easily destroyed. Id. at 618 (quoting Richards v. Wisconsin, 520 U.S. 385, 395, 117 S. Ct. 1416, 1422, 137 L. Ed. 2d 615, 624 (1997). See also State v. Jones, 179 N.J. 377, 399-400 (2004) (acknowledging that that police need not satisfy a high standard to justify a no-knock warrant).

"To satisfy the destructibility-of-evidence exception to the knock-and-announce rule, the police must articulate some reason specific to the crime, to the person under investigation, or to some other permissible factor, that leads them reasonably to believe that destruction of evidence is more than a hypothetical possibility." Johnson, supra, 168 N.J. at 620. Relevant factors include the "size and layout" of the premises, whether the suspect is expected to be home at the time the warrant is executed, and whether there may be other persons present who might destroy evidence or threaten the police. State v. Bilancio, 318 N.J. Super. 408, 417 (App. Div.), certif. denied, 160 N.J. 478 (1999).

"Past evidence of violent criminal behavior, particularly behavior directed towards law enforcement officers, is plainly probative of the heightened risk posed to officer safety." Jones, supra, 179 N.J. at 402; State v Sanchez, 179 N.J. 409, 412 (2004). Judges may consider a suspect s prior arrests as well as convictions. Jones, supra, 179 N.J. at 407; Sanchez, supra, 179 N.J. at 412. And, where a suspect has had multiple drug convictions and faces a possible extended term, the greater potential for resisting arrest is relevant, because of the "strong incentive to resist capture by the police." Jones, supra, 179 N.J. at 408.

In Johnson, the Court found there was an insufficient basis to issue a no-knock warrant, because the warrant application had little factual detail:

Detective Falcone concluded his recitation of facts by stating "[t]herefore your Honor I'm requesting a no knock search warrant for officers['] safety and it means that the narcotics can be easily [] destroyed and be served within twenty four hours." That one sentence contains the only specific reference to the no-knock entry in the detective's testimony.

 

[Johnson, supra, 168 N.J. at 613.]

 

Moreover, the judge made no factual findings concerning the need for a no-knock warrant. Ibid.

The Court noted for future reference the sorts of details that might have justified a no-knock warrant:

We note, for example, the facts that Detective Falcone did not include in his application that might have justified an unannounced entry. He did not suggest that the informant had observed weapons or had perceived any indication of defendant's propensity for violence when undertaking the controlled buy. He did not furnish the issuing judge with the layout of Figaroa's apartment or describe it in such fashion as would have enabled the judge to assess whether the occupants could have destroyed evidence in the short time that would have elapsed between the officers announcing their presence and entering the premises.

 

Moreover, the applying officer did not provide the court with information concerning defendant's criminal history or background that might have supported the conclusion that defendant had a propensity for violence.

 

[Id. at 624]

By contrast with Johnson, in this case, Investigator Sgro articulated specific reasons why the police needed no-knock warrants, including defendant s prior conviction for resisting arrest. Defendant also had enough prior drug convictions to justify an extended term if convicted again, thus increasing his motivation to both destroy evidence and resist arrest. See Jones, supra, 179 N.J. at 408. Defendant had ready access to Skaris home and thus both he and Skaris might be on the premises. And the police did not know the layout of Skaris or defendant's homes or where the drugs were likely to be hidden, thus increasing the risk that defendant or Skaris could destroy the evidence before the police could recover it. Under all the circumstances, we find no basis to disturb Judge Den Uyl s well-reasoned decision to uphold the no-knock warrant and deny the motion to suppress.

We also agree with Judge Den Uyl that defendant s self-serving affidavit, which directly contradicted his earlier recorded statement to the police, did not justify a Franks hearing. Defendant s appellate contentions on that issue are without merit and do not warrant further discussion here. R. 2:11-3(e)(2).

Affirmed.

 

1 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

2 In fact, as the Court noted in Johnson, the "knock and announce" requirement dates back to medieval England, possibly as far back as the Magna Carta. Id. at 615.